labor lawAdivision of labor law center

The EEOC on April 22, 2009 released guidelines of best practices for employers who have workers with personal care-giving responsibilities.

 

Many employment law experts take exception to this action by the EEOC. They point out that no federal (and few state) laws specifically protect caregivers from discrimination. One SHRM representative rather caustically remarks that the EEOC has enough to do, enforcing discrimination based on race, color, religion, national ancestry, sex, pregnancy, disability and age, without branching out into more controversial areas.

 

The EEOC, however, contends that most caregivers are covered under several existing laws including:

 

• The Americans with Disabilities Act, which prohibits discrimination based on association with a disabled person. This law would protect an employee who was caring for her developmentally disabled adult sister, or a grandparent who was in a wheelchair
• Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex or race, when caregivers are treated disparately. For example, an employer may assume that a female caregiver with a disabled child cannot travel, and therefore is not eligible for a promotion. Or, the employer may assume that a male employee cannot or should not have caregiver responsibilities.
• FMLA, the federal Family and Medical Leave Act, which permits employees to take up to 12 weeks of unpaid, job-protected leave to care for a parent, son or daughter or spouse with a serious health condition. Employers are legally required to notify the employee within 5 days of an absence that could qualify as FMLA. Instead, many employers deny time off to workers with care-giving responsibilities.

Even the EEOC admits that these guidelines are a bit of a reach. “Federal law does not prohibit employment discrimination based on caregiver status,” says EEOC assistant legal counsel Dianna Johnston. “but it is implicated when workers with care-giving responsibilities are treated differently based on a characteristic that is protected by law such as gender, race or association with a disabled person.”

 

Some employers welcome these guidelines. Others fear they are just the first step in extending more unpaid leave to workers – perhaps by amending FMLA to apply to employers with fewer than 50 workers.

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